OT:RR:CTF:CPMM H303126 KSG
Nicole Bell
Cypress Import Brokerage, LLC
4345 Southpoint Blvd.
Jacksonville FL 32216
RE: Revocation of NY N301154, NY N300856, NY N303558, NY N290033, NY J89299, NY J87912, NY N236829, NY J87145, NY F88830, NY 810044 and NY N242165; modification of NY N285765; tariff classification of nonwoven wipes
Dear Ms. Bell:
This letter is in reference to New York Ruling Letters (NY) N301154, dated October 31, 2018, NY N300856, dated October 11, 2018, NY N303558, dated April 16, 2019, NY N290033, dated October 3, 2017, NY J89299, dated October 20, 2003,
NY J87912, dated September 12, 2003, NY N236829, dated January 25, 2013, NY J87145, dated September 2, 2003, NY F88830, dated August 18, 2000, NY 810044, dated June 20, 1995, NY N242165, dated June 4, 2013, and NY N285765, dated May 26, 2017, regarding the classification of nonwoven wipes in the Harmonized Tariff Schedule of the United States (HTSUS).
In NY N301154, NY N300856, NY N303558, NY N290033, NY N242165, NY N236829, NY N285765, NY J87145, NY F88830 and NY 810044, U.S. Customs & Border Protection (CBP) classified nonwoven wipes in heading 3401, HTSUS, which provides for soap in the form of bars, cakes, molded pieces or shapes.
In NY J89299 and NY J87912, CBP classified nonwoven wipes in heading 3402, HTSUS, which provides for organic surface-active agents other than soap.
We have reviewed NY N301154, NY N300856, NY N303558, NY N290033, NY J89299, NY J87912, NY N236829, NY J87145, NY F88830, NY 810044, NY N242165; and NY N285765 and determined that the rulings are in error. Accordingly, for the reasons set forth below, CBP is revoking NY N301154, NY N300856, NY N303558, NY N290033, NY J89299, NY J87912, NY N236829, NY J87145, NY F88830, NY 810044 and NY N242165, and modifying NY N285765.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice proposing to revoke NY N301154, NY N300856, NY N303558, NY N290033, NY J89299, NY J87912, NY N236829, NY J87145, NY F88830, NY 810044 and NY N242165, and to modify NY N285765 was published on June 24, 2020, in Volume 54, Number 24 of the Customs Bulletin. No comments were received in response to this notice.
FACTS:
The articles at issue in NY N300856 and NY N301154 are pre-moistened nonwoven wipes used for cleansing the skin. The wipes are sold in boxes of 50 and 100 piece and measure 7.5 inches by 12.5 inches. The primary use for these wipes is for incontinence. The article is marketed primarily to long term care facilities, for use in home healthcare and physician's offices.
A spec sheet was submitted with the ruling request for NY N300856 which listed the following formula for the nonwoven wipes: water, glycerin, polysorbate 20, disodium cocoamphodiacetate, aloe extract, tocopheryl acetate, chamomilla extract, disodium EDTA, phenoxyethanol, DMDM hydantoin, iodopropynyl-butylcarbamate, citric acid and fragrance.
The articles at issue in NY N303558, NY N290033, NY J89299, and NY N285765 are towelettes designed to remove makeup. The towelettes are impregnated with a skin cleaning solution, which includes a surfactant that is not aromatic or modified aromatic.
The articles at issue in NY N236829, NY J87145 and NY F88830 are baby wipes for cleaning the sensitive skin of a baby. The wipe is impregnated with a cleansing solution based on plant-derived cleaning agents and contain a non-aromatic surfactant.
The articles at issue in NY J87912 and NY 810244 are described as hand and general skin wipes.
The article at issue in NY N242165 is a wipe for pets.
ISSUES:
Whether the nonwoven wipes described above are classified in heading 3401, HTSUS, as nonwovens impregnated with soap or detergent or in heading 3402, HTSUS, as a cleaning preparation other than those classified in heading 3401, HTSUS.
If the wipes are classified in heading 3401, are they for toilet use and classified in subheading 3401.11.50, HTSUS or in subheading 3401.19.00, HTSUS.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
GRI 6 provides that for legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related Subheading Notes and, mutatis mutandis, to the above Rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this Rule the relative Section and Chapter Notes also apply, unless the context otherwise requires.
The HTSUS subheadings under consideration are the following:
3401 Soap; organic surface-active products and preparations for use as soap, in the form of bars, cakes, molded pieces or shapes, whether or not containing soap; organic surface-active products and preparations for washing the skin, in the form of liquid or cream and put up for retail sale, whether or not containing soap; paper, wadding, felt and nonwovens, impregnated, coated or covered with soap or detergent:
Soap and organic surface-active products and preparations, in the form of bars, cakes, molded pieces or shapes, and paper, wadding, felt and nonwovens, impregnated, coated or covered with soap or detergent:
3401.11 For toilet use (including medicated products):
3401.11.50 Other
3401.19.00 Other
3401.30 Organic surface-active products and preparations for washing the skin, in the form of liquid or cream and put up for retail sale, whether or not containing soap:
3401.30.50 Other
3402 Organic surface-active agents (other than soap); surface-active preparations, washing preparations (including auxiliary washing preparations) and cleaning preparations, whether or not containing soap, other than those of heading 3401:
Organic surface-active agents, whether or not put up for
retail sale:
The legal notes to Chapter 34 state, in pertinent part, the following:
2. For the purposes of heading 3401, the expression "soap" applies only to soap soluble in water. Soap and the other products of heading 3401 may contain added substances (for example, disinfectants, abrasive powders, fillers or medicaments). Products containing abrasive powders remain classified in heading 3401 only if in the form of bars, cakes or molded pieces or shapes. In other forms they are to be classified in heading 3405 as "scouring powders and similar preparations".
3. For the purposes of heading 3402, "organic surface-active agents" are products which when mixed with water at a concentration of 0.5 percent at 20°C and left to stand for one hour at the same temperature:
(a) Give a transparent or translucent liquid or stable emulsion without separation of insoluble matter; and
(b) Reduce the surface tension of water to 4.5 x 10 -2 N/m (45 dyne/cm) or less.
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 34.01 provides, in pertinent part, as follows: SOAP Soap is an alkaline salt (inorganic or organic) formed from a fatty acid or a mixture of fatty acids containing at least eight carbon atoms. In practice, part of the fatty acids may be replaced by rosin acids. The heading covers only soap soluble in water, that is to say true soap. Soaps form a class of anionic surface-active agents, with an alkaline reaction, which lather abundantly in aqueous solutions. (III) ORGANIC SURFACE-ACTIVE PRODUCTS AND PREPARATIONS FOR WASHING THE SKIN, IN THE FORM OF LIQUID OR CREAM AND PUT UP FOR RETAIL SALE, WHETHER OR NOT CONTAINING SOAP This part includes preparations for washing the skin, in which the active component consists wholly or partly of synthetic organic-surface active agents (which may contain soap in any proportion), provided they are in the form of liquid or cream and put up for retail sale. Such preparations not put up for retail sale are classified in heading 34.02. EN 34.01 does not define “organic surface-active products.” However, a description of this term is provided by the EN to heading 3402, which, prior to the creation of subheading 3401.30 in 2002, covered products now classifiable in that subheading.
EN 34.02 provides, in relevant part, as follows: Organic surface-active agents are capable of adsorption at an interface; in this state they display a number of physico-chemical properties, particularly surface activity (e.g., reduction of surface tension, foaming, emulsifying, wetting), which is why they are usually known as “surfactants”…
When terms are not defined in the HTSUS or the ENs, they are construed in accordance with their common and commercial meanings, which are presumed to be the same. In determining the common meaning of a term in the tariff, courts may and do consult dictionaries, scientific authorities and other reliable sources of information…. Nippon Kogaku (USA), Inc. v. U.S., 673 F.2d 380 (C.C.P.A. 1982).
The products at issue in this case are nonwovens impregnated with a cleansing solution. The first issue is whether the cleaning solution on the wipes are classified as a "soap or detergent" or as an organic surface-active agent (other than soap).
While the term "soap" is defined in note 2 to chapter 34, the term "detergent" is not defined. The Merriam-Webster Dictionary defines the noun “detergent”, as “a cleansing agent: such as…any of numerous synthetic water-soluble or liquid organic preparations that are chemically different from soaps but are able to emulsify oils, hold dirt in suspension, and act as wetting agents”. This language matches that in ENs 34.01(III) and 34.02 in that it describes a synthetic liquid organic preparation that reduces surface tension and performs as a wetting agent.
The CBP Laboratory and Scientific Services confirmed that the Disodium Cocoamphodiacetate, named in NY N300856, is a synthetic surfactant produced on the basis of fatty acids derived from coconut oil. In short, it is a surface-active agent and detergent. Consequently, as nonwoven wipes containing detergent, the article in NY N300856 is described by heading 3401, HTSUS. The other wipes at issue are similar products containing a cleansing agent and would also be classified in heading 3401, HTSUS. Accordingly, we conclude that the non-woven wipes involved in this case would be classified in heading 3401, HTSUS, and not in heading 3402.
The EN for heading 3401 indicates that it covers "toilet and washing articles". The word "toilet" is defined in Merriam-Webster Dictionary, as including "the act or process of dressing and grooming oneself."2 The French version of the Harmonized Tariff Schedule (HTS) uses the word "toilette" in connection with heading 3401. The word "toilette" is defined in Lexico Dictionaries, as "the process of washing oneself, dressing, and attending to one's appearance."3 The word "oneself" included in both definitions describe the dressing, grooming, and washing of a person.
All of the wipes in this case besides the pet wipes, whether used for personal cleaning, personal grooming, cleaning a baby, or the removal of make-up, involve the grooming and washing of a person. The wipes described in NY N301154, NY N300856, NY N303558, NY N290033, NY J89299, NY J87912, NY N236829, NY J87145, NY F88830, NY 810044 and NY N285765 all contain a soap or detergent and are used for toilet/toilette use. They are classified in subheading 3401.11.50, HTSUS.
The nonwoven wipes for pets described in NY N242165 do not fall within the definition of "toilet" or "toilette" because they are not used for the cleaning or grooming of a person. Thus these articles would fall within the basket provision of subheading 3401.19.00, HTSUS, pursuant to GRI's 1 and 6.
HOLDING:
Pursuant to GRI's 1 and 6, the nonwoven wipes provided for in NY N301154, NY N300856, NY N303558, NY N290033, NY J89299, NY J87912, NY N236829, NY J87145, NY F88830, NY 810044, and NY N285765 are classified in subheading 3401.11.50, HTSUS. The wipes for pets described in NY N242165 are classified in subheading 3401.19.00. The column one, general rate of duty for all of the wipes is Free.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided for at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY N301154, NY N300856, NY N303558, NY N290033, NY J89299, NY J87912, NY N236829, NY J87145, NY F88830, NY 810044 and NY N242165 are revoked in accordance with the above analysis. NY N285765 is hereby modified.
This ruling will become effective 60 days from the date of publication in the Customs Bulletin.
Sincerely,
for
Craig T. Clark, Director
Commercial and Trade Facilitation Division
cc:
Ted Conlon Fourstar Group USA, Inc. 189 Main Street, Suite 31 Milford, MA 01757
George C. Lovequist Amway 7575 Fulton Street East, MC 55-1H Ada, MI 49355
Debbie Dudzinski GBG Beauty, LLC 350 5th Avenue, 9th Floor New York, NY 10118
Long Vu Walgreens Company 304 Wilmot Road, MS #3163 Deerfield, IL 60015
Patricia Malone Gilbert International Forwarding 5777 W. Century Blvd., Suite 350 Los Angeles, CA 90045
Rodney Ralston UPS Supply Chain Solutions, Inc. 1 Trans-Border Drive Champlain, NY 12919
Kristina Neumann Seventh Generation 60 Lake Street, Suite 3N Burlington, VT 05401
Alice Liu ATICO International USA, Inc. 501 South Andrew Avenue Ft. Lauderdale, FL 33301
Shervin Zade U.S. Nonwovens Corp. 100 Emjay Boulevard Brentwood, NY 11717
Paulette A Quinn Manager The Hipage Company, Inc. P.O. Box 1786 124-A West Bay Street Savannah, GA 31401
Heather Creegan Barthco International Division of OHL One CVS Drive Woonsocket, RI 02895